United States District Court, N.D. Indiana, Hammond Division
VALERIE GARZA, Individually and in behalf of B.A.G., an unborn viable fetus, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
OPINION AND ORDER
T. MOODY JUDGE
matter is before the court on the motion to dismiss filed by
the United States of America, the defendant in this case. (DE
# 11.) For the reasons set forth below, the motion is
Valerie Garza filed a complaint in the Porter Superior Court
on January 16, 2018, alleging that on or about July 6, 2016,
a physician provided negligent healthcare services that
resulted in the death of plaintiff's unborn child. (DE #
4.) On May 23, 2018, defendant removed the complaint to this
federal court (DE # 1) and substituted itself as defendant in
this case pursuant to 28 U.S.C. § 2679(d)(2) (DE # 5),
stating that the physician named in the complaint was
effectively an employee of the United States because he was
acting within the scope of his employment as a Public Health
Service employee pursuant to the Federally Supported Health
Centers Assistance Act, 42 U.S.C. § 233(g)-(n), at the
relevant time. (DE ## 1, 5.)
has now moved to dismiss the complaint for lack of subject
matter jurisdiction. (DE # 11.) Defendant claims that: (1)
this court lacks derivative jurisdiction, and (2) plaintiff
failed to exhaust administrative remedies as required by the
Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§ 2671 et seq. Plaintiff responded to the
second argument, only. Regardless, the motion is ripe for
ruling. Because, as explained below, the court lacks
derivative jurisdiction over this matter, the motion is
granted and the court need not consider the issue of
exhaustion of remedies.
motion to dismiss falls under Rule 12(b)(1), which is the
vehicle for asserting that the court lacks jurisdiction over
the subject matter. A Rule 12(b)(1) motion can present either
a facial or factual challenge to subject matter jurisdiction.
Apex Digital, Inc. V. Sears, Roebucks & Co., 572
F.3d 440 (7th Cir. 2009). A facial attack, like this one, is
a challenge to the sufficiency of the pleading itself.
Id. When such a challenge has been presented, the
court takes all well-pleaded factual allegations as true and
draws all reasonable inferences in favor of the plaintiff.
Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th
argument is, essentially, that this court lacks jurisdiction
over this matter because the Porter Superior Court lacked
jurisdiction to begin with. This argument invokes the
doctrine of derivative jurisdiction, a general rule under
which a federal court may only inherit, via removal, whatever
jurisdiction was held by the state court prior to removal.
Rodas v. Seidlin, 656 F.3d 610, 615-16 (7th Cir.
2011); Edwards v. United States Dep't of
Justice, 43 F.3d 312, 316 (7th Cir. 1994).
case, defendant's argument appears technically correct.
The physician named in the original complaint was certified
as a Public Health Service employee, so he is a federal
employee covered by sovereign immunity. 42 U.S.C. §
233(g)(1)(A). This immunity has been waived under the FTCA
for purposes of suits like this, but actions brought under
the FTCA may only be brought in federal district court. 28
U.S.C. §1346(b)(1); Midwest Knitting Mills, Inc. v.
United States, 950 F.2d 1295, 1297 (7th Cir. 1991). This
case was originally filed in state court, which lacked
jurisdiction. Removal was proper under 42 U.S.C. §
233(c), but the doctrine of derivative jurisdiction mandates
that this court may only inherit whatever jurisdiction was
held by the state court. Rodas, 656 F.3d at 615-16;
Edwards, 43 F.3d at 316. Therefore, even though the
case has now been properly removed to federal court, the
doctrine of derivative jurisdiction dictates that this case
cannot be before this federal court because it was never
properly before the state court from which it was removed.
plaintiff made an argument in response, she might have
contended that the Seventh Circuit, in Rodas,
allowed a defect like this to be overlooked, despite the
doctrine of derivative jurisdiction, in a case that was
removed pursuant to 28 U.S.C. § 1442. 656 F.3d 610. This
court would have indeed been tempted to allow Rodas
to infiltrate the present territory of removals under 42
U.S.C. § 233(c). After all, if the case must be
heard in federal court, and in federal court it now lies, why
dismiss and require plaintiff to file anew? Yet, district
courts addressing Rodas have limited its application
to cases where the dispute had already proceeded to a
disposition on the merits. Brown v. Hosp.
“A”, No. 2:17-CV-125, 2017 WL 5989717, at *3
(N.D. Ind. Dec. 4, 2017) (Lozano, J.); Ajabu v.
Harvey, No. 118CV01243-JMS-MJD, 2018 WL 3586588, at *5
(S.D. Ind. July 26, 2018) (Magnus-Stinson, J.); Pelto v.
Office of Reg'l Chief Counsel, No. 11-CV-815-WMC,
2013 WL 5295678, at *3 (W.D. Wis. Sept. 19, 2013) (Conley,
J.). Further, as the Pelto court aptly stated, the
“slow creep” that Rodas represents
against the doctrine of derivative jurisdiction “is for
the federal courts of appeals to make, not this [district]
court.” 2013 WL 5295678, at *3.
record, the court notes that the present rule is, as the
Pelto court articulated,
“[b]ewildering.” 2013 WL 5295678, at *3. Under
the law as it exists at this time, this lawsuit must
be heard here and also must not be heard here, all
at once. Dismissal in this case requires plaintiff to re-file
in federal court and perhaps argue equitable tolling should
she encounter any issues with respect to the statute of
limitations. However, this court declines to unilaterally
allow further “creeping” of Rodas absent
more specific direction from the Seventh Circuit Court of
Appeals, and follows its fellow district courts in deciding
that the doctrine of derivative jurisdiction requires
dismissal of this suit. Brown, 2017 WL 5989717, at
*3 (case dismissed because removal under 42 U.S.C. §
233(c) was limited by doctrine of derivative jurisdiction);
see also Ajabu, 2018 WL 3586588, at *5 (same,
removed under 28 U.S.C. § 1442); Pelto, 2013 WL
5295678, at *3 (same).
reasons set forth above, the motion to dismiss (DE # 11) is
GRANTED and the complaint ...